ACTION FOR LIBEL.

Star (Christchurch), Issue 5579, 29 March 1886, Page 3

ACTION FOR LIBEL.

Stewart v. Hoydliouse and Another. Close of the Case. Dama es One Shilling. [Specially Eeported.] (At the Supreme Court, Dunedin, before Mr Justice Williams, and a special jury of twelve.) The case was resumed on Saturday morning at 10 o'clock. Dr Nedwill was cross-examined by Mr Stringer at very great length. Hiß Honor ruled that the evidence of Dr Doyle was inadmissible. The Attorney- General and Mr Stringer addressed the jury. THE JUDGE'S SUMMING UP. The following is the Judge's summing up:— His Honor prefaced his charge to the jury with the following definition of the law : — If a person publishes intentionally matter defamatory of another he publishes a libel, and he publishes it maliciously if he publishes it without just cause or excuse ; generally, if a person does intentionally an act that injures another person, he does that act maliciously. The first question, therefore, that the jury in this case must consider is this : Is the writing itself defamatory, and was it published intentionally f If so it must be taken to have been published maliciously, unless it appear that there was jnst cause or excuse for pubUshiag it. If we look at the article of which the plaintiff complains, we can see beyoad doubt that it is, in its nature, defamatory, and that it is defamatory of the plaintiff. Unless, therefore, it appear that there was juat cause or excuse for publishing it, the plaintiff is entitled to the verdict of the jury. (Hiß Honor then read the passages of the article alleged to point to the plaintiff.) Though, of course, the name of Dr Stewart is not mentioned throughout the article, everybody who knew anything about the article knew who was meant. As I have said, it is headed " Bevolting Disclosures : manslaughter or worse." Well, it says generally that there was bad management at the Hospital, but it also mentions par- j ticular instances in which it alleges three or four times over that a patient had been j killed at the Hospital by a practitioner, and the heading therefore must manifestly j refer to that particular instance. As there is no other instance mentioned in the article of anyone else kaving been put to death at the Hospital, this case of Strickland must be known to refer to Dr Btewart, j as in fact it does refer to him, and the writer seems to take it on himself to assert I the truth of the communications that were made by Dr Nedwill to the Government. The article is justified on two grounds, viz. : — Ist. That a number of itatements of fact in it are true ; and next, that the j article generally is fair comment on the conduct of a public institution, and on the conduct of a public officer of that institution. It is a mistake to say that the jury would not have to enquire as to the truth of the libel, because the libel is justified in the pleadings on the ground of its truth, and that is one of the very questions that the jury are here to try. The libel is also justified on the ground of being fair comment on the conduct of a public institution, and on the behaviour of an officer of that institution. The jury had been told that if a public journalist in the course of his writings makeß charges against an officer, or any person employed in a public position, and those charges happen to be untrue, then the journalist is not liable in an action for libel, if he honestly believes the charges to be true. That is not the law, in my opinion ; a journalist has no special privilege over the rest of his fellow-citizens, and it would be quite out of the question to »y generally that any person may say or write anything of anyone elße, anything that he honestly believed to be true, and not be liable for the consequences. There is no doubt that the Press have a right to, and they have very properly taken on themselves the duty of commenting on public affaire, and unsparingly exposing abuses. That is admitted to be the most important part of the functions of a journalist. If, however, a journalist is not content with simply criticising the conduct of a public •fficer, but departs from mere criticism and formulates a distinct and specific charge againet that officer, then the journalist, just as much a? any other man, is liable to the person whom he has charged, unless either he can show that the charge is true, or unless he can show that it is an honest and reasonable inference from the conduct of the person charged. A person holding a political position can be attacked with the most complete freedom. If, however, a journalist, not content with attacking — I will say the Colonial Treasurer, on political grounds — were to say that on such and such an occasion the Colonial Treasurer took some of the Colonial funds and put them into his pocket, then the journalist or other person, whoever he was, who made such an assertion, would, if an action for libel were brought against him, either have to prove it, or else show that the conduct of the Colonial Treasurer, or whoever the public officer was, justified a reasonable and honest inference that the charge was true. The jury, in considering this case, will have to take the law as I have laid it down to them. If the charges are true the defendants are not liable to the. action if the conduct of the plaintiff, though it has not altogether been such as the libel alleges that it was, yet was of such a character as to justify a reasonable person in honestly drawing inferences of fact contained in the libel, then also the defendants will be entitled to succeed ; but unless one of these two conditions occur, the plaintiff would be entitled to the verdict. It is not, as I have already told the jury, a defence to the action merely that the defendants honestly believe the statements in the libel to be true, although possibly that consideration may weigh with you if it should come to the question of what damages the plaintiff is entitled te recover. As to that I will refer later. You see, then, that the substantial point of the case, from the view I have put before you, is : — What was the conduct of Dr Stewart ? That touches both the issues ; the issue of the truth, and the issue of fair inference. His Honor having commented at length on the evidence, concluded thus: —If you think that the article is justified, there is an end of the matter; but if you think that the article is not justified, then yon have to consider the question of what damages the plaintiff iB entitled to recover. The plaintiff claims £2000. The question of damages is one entirely for you ; and if you consider it you will consider the nature of the charge, the position of the person charged, and the publicity which the article received. You will, of course, look at the terms of the libel itself. It would be also open for you to take into consideration, in considering the question of mitigation of damages, the good faith and reasonableness of the writer. If a public journalist, after careful and painful enquiry, makes charges which he cannot substantiate, although he may be cast in damages, yet the circumstance that he has made reasonably careful enquiry should certainly influence the jury in the amount of damages which they give. You heard what Mr Wakefield said ; you heard him say he wrote it with a good object, and believing what Dr Nedwill told him. However, the fact of Mr Wakofield honestly believing what he was told is not tho only matter to take into consideration. It would be proper, also, for you to take into consideration the reasonableness of the course which was taken. We hear this : — There waß a public enquiry at which evidence was taken on oath, at which Dr Nedwill wag heard on one side, and several other doctors on the other. That was published, and anybody might see it. Mr Wakefield Raid ho saw it simply aB one of the public, skimmed it over, and evidently took very slight pains to make himself acquainted with what took place, and with the rights of tho case aB appearing on the conflict of evidence. What is done is that Mr Wakefield meets Dr Nedwill, and Dr Nedwill shows his side of the story, and Mr Wakefield accepts that aa gospel and makes but very slight additional enquiry about the matter. Mr

Wakefield did not take notes of what Dr Nedwill said to him, but a Bhorttime afterwards he made notes of it, and some fortnight or so later the article was published. I do not know that I need to trouble you further. I will just put three issues to you. The following issues were put before the jury, who retired at 5.50 :— 1. Is the article complained of a libel ? 2. Has its publication been justified (a) by reason of the allegations of fact being true; (6) by reason of these allegations being fair comments on the conduct of the plaintiff in his capacity as one of the Hospital staff P 3. If it is not justified from either of the above reasons, what damages is the plaintiff entitled to recover? FINDING OF THE JURY. At 6.80 the Foreman came into Court, and asked if the verdict of nine would be taken. There was no likelihood of their coming to a unanimous conclusion. i His Honor replied that the jury must be out three hours, and at the expiration of that time he would take a verdict of nine. Shortly before 9 o'clock the j ury returned into Court, and the foreman gave in the verdict of nine, answering the issueß in favour of the plaintiff and awarding One Shilling damages. The Foreman : I have been requested by the jury to aßk if it comes within the province of the jurors to make a suggestion that an enquiry should be held ? His Honor : Yes. The Foreman: We are unanimously, desirous that the Government should insist npon a rigid enquiry into the management or the Christchuroh Hospital. His Honor: I have no doubt that the Press will take a note of that recommendation. Mr Stringer asked his Honor to certify for ooßts, but it was agreed that the matter of ooets should be left over for argument in Chambers. The Court rose shortly after 9 p.m.